Fifty years after the passage of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 making pay discrimination illegal, equal pay in the workplace is clearly a hot topic on the minds of our state and federal legislators and regulators. Earlier this week, we published an article regarding Maryland's amended equal pay law. That same morning, the U.S. Equal Employment Opportunity Commission ("EEOC") issued a press release stating that its top leaders would be participating in the White House United State of Women Summit to address topics affecting women in the workplace, including economic empowerment, health and wellness, educational opportunity, violence against women, entrepreneurship and innovation, and civic engagement.
To coincide with the Summit, the EEOC released a resource document titled, "Equal Pay and the EEOC's Proposal to Collect Pay Data" to further explain the proposal it released in February 2016 in partnership with the U.S. Department of Labor to annually collect summary pay data by gender, race, and ethnicity, from employers with 100 or more employees. After holding a public hearing on the proposal in March 2016 and receiving comments, the EEOC issued the resource document to explain its proposed revisions to the Employer Information Report (EEO-1) to collect pay data from employers. The intent to collect such information would provide the EEOC and the Office of Federal Contract Compliance Programs ("OFCCP") with insight into pay disparities across industries and occupations. The resource document also indicates that the EEOC intends to "compile and publish aggregated data" in order to help employers to come into voluntary compliance with the law regarding their internal pay practices.
The resource document also explains the rights of men and women to equal pay if they perform substantially the same work in the same workplace. The EEOC notes that the reference to "equal pay" refers to more than just the final dollar amount on a paycheck, but includes the right to an equal salary, overtime pay, bonuses, stock options, profit sharing, bonus plans, life insurance, vacation and holiday pay, and other forms of pay. Under the Equal Pay Act, unequal pay between employees of different genders cannot be justified unless the employer can show that "the pay differential is based on a fair seniority, merit, or incentive system, or a factor other than sex."
It is important to note that while the pay data that is potentially collected from EEO-1 reports only applies to employers with 100 or more employees, the requirements of the Equal Pay Act apply to employers of all sizes. Along those lines, to conclude the resource document, the EEOC notes that it is active in enforcing equal pay in the workplace and provides employees who believe that they have been discriminated against in their pay with the information for filing a complaint. Regardless of the size of your workforce, now is the time to seriously review your pay practices to ensure that they comply with the Equal Pay Act because you can expect the EEOC and the DOL to be collecting and using that information against you in the near future.